Shame on Canada and Specifically the DVA
Canada loses fine troops in various ways and varied locales,not just the battlefield. This article was sent to me by a fellow veteran and says it all. Thanks to Ed Oursien.
A soldier's 'death by process'
Published Friday April 25th, 2008
To care for him who shall have borne the battle and for his widow and his orphan..........Abraham Lincoln
Article by Sgt Yvan Delisle
Canadians mark Remembrance Day at the National War Memorial in Ottawa. Canada is good at remembering those who died in battle; but what of those who die on active duty in other circumstances? Onalee Frye, the respondent, was an accidental litigant in every sense of the word. In late July 1994, Ms. Frye's husband, Corporal Lee Berger, a career soldier, was called back from his annual leave and sent to Penticton B.C. to fight a forest fire. In Penticton, Cpl. Berger was part of a company of soldiers that spent 16-hour days in the hills surrounding the town battling a massive blaze that destroyed many homes. On the evening of Aug. 2, Cpl. Berger and several comrades left the camp and went down to a lake for a late night swim. As they returned to camp, shortly after midnight, Cpl. Berger was struck and killed by a passing tractor-trailer. Some weeks after her husband's funeral, Ms. Frye, with the assistance of her husband's regiment, filed for a widow's pension under the Pension Act. And thus began her legal odyssey. Several months after she filed, the Department of Veterans Affairs denied the pension on the grounds that Cpl. Berger's death neither arose out of nor was directly connected with his military service. The department ruled that, as Cpl. Berger was off-duty at the time he was killed, his death was not related to his duties as a soldier. For the department, the circumstances of Cpl. Berger's death were no different than had he died from slipping in the shower at home, or drowned while on vacation in Florida. The military, however, took a different view. Even when the troops were in camp, they were deemed to be on-call for immediate deployment back to the hills. Unfortunately for Ms. Frye, the military was unable to get Veterans Affairs to overturn the initial ruling and, in 1996, she retained a civilian law firm to take up her case. Ms. Frye's lawyer on contingency commenced the first of what would be three actions before the Veterans Review and Appeal Board (VRAB) concerning the death of Cpl. Berger. In each case, the VRAB upheld the department's original decision, although the Board's reasoning changed from hearing to hearing. At one hearing, the VRAB panel found that Cpl. Berger was taking advantage of recreation and relaxation time when he died; in another it found that, as he had not signed out of the camp to go swimming, he was not acting under military orders. Finally, in 2003, the lawyers petitioned the Federal Court for a judicial review of the VRAB's decisions. Judicial review is an application to a court for a legal ruling on a decision, or aspect of a decision, by an administrative or quasi-judicial body, which are usually composed of non-lawyers. In July 2004, almost a decade after Cpl. Berger's death, Justice Harrington of the Federal Court overturned the Minister's ruling that Cpl. Berger's death was not directly connected with his military service. Justice Harrington ruled that the VRAB had not considered the issue of proximity to the Berger case; that had his military duties not called him to British Columbia, Cpl. Berger would have been at home with his wife, away from the forest fires and tractor-trailers. Accordingly, military operations had placed Cpl. Berger in an area of elevated risk which, in the end, was responsible for his death. Justice Harrington ordered that the VRAB reconsider the pension application on the basis that Cpl. Berger's death was directly connected to his military service. Somewhat incredibly, the VRAB never reconsidered the case. Instead, the Attorney-General of Canada appealed the proximity ruling to the Federal Court of Appeal. In 2005, a Court of Appeal panel (three judges) heard the case. In a decision that might be properly described as a legal evisceration, the panel overturned every argument of fact and law put forward by the Attorney-General. The justices held that the Pension Act was social welfare legislation and, in accordance with the Supreme Court of Canada, was to be interpreted with a liberal and generous approach. Accordingly, the VRAB, which had applied the Pension Act in a restrictive manner, had erred. The Court further held that, had the VRAB interpreted the Pension Act correctly, the only reasonable conclusion that the Board could reach was that Cpl. Berger's death was directly connected with his military service. With their decision the justices effectively cut off every avenue of appeal for the Attorney General and, as a consequence, Veterans Affairs Canada finally began paying Ms. Frye the pension that had been denied for so long. The appeal regime at Veterans Affairs amounted to a good example of death by process, a condition all too common to administrative bodies. While on the surface appearing fair, the regime effectively delayed a proper hearing of the case for a full seven years. It was only after her appeals at the VRAB were exhausted in 2003 that Ms. Frye was able to receive a comprehensive legal review of her case. The case, which played out from 1994 through 2005, occurred on the watch of eight separate ministers of Veterans Affairs. My husband served with Cpl. Berger in the military more than a decade ago. The names of Canadian military personnel who die in the service of Canada are recorded in the Seventh Book of Remembrance, which has a place of honour in the Peace Tower in Ottawa. In researching this story, it was noticed that Cpl. Berger's name was not included in this book. His name will join those of his fallen comrades when it is next removed for inscription. Lisa Keenan of Saint John is a lawyer and the former president of the New Brunswick Progressive Conservative Party. Her column appears on Friday.
Bill Gerdson CD V.P. Agent Orange Association of Canada We Will Be Known By The Tracks We Left Behind.
People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf. - George Orwell
Canada's Military men and women serve us in varied ways as they serve Canada and her needs, this story should never have been allowed to happen. Apologies from Canadians to the wife of this career soldier.
Please support our troops in prayers and actions.
Nil Sine Labore
Robby
